Moore v. State

34 A.3d 513, 424 Md. 118, 2011 Md. LEXIS 781

Opinions

BATTAGLIA, J.

We are asked to determine whether operability is a prerequisite for a handgun to be considered a “firearm,” as it is defined in Section 5 — 101(h)¹ of the Public Safety Article, Maryland Code (2003), in order to sustain a conviction for possession of a regulated firearm by a disqualified person under Section 5-133(c)² of the Public Safety Article, Maryland Code (2003).

The Petitioner, Rodney Taureen Moore, after entering into an agreed statement of facts, was convicted of illegal possession of a regulated firearm in the Circuit Court for Baltimore County and sentenced to five years’ imprisonment without possibility of parole. Moore appealed to the Court of Special Appeals, which affirmed his conviction in a reported opinion, Moore v. State, 189 Md.App. 90, 983 A.2d 583 (2009), and we granted his Petition for a Writ of Certiorari, 412 Md. 689, 990 A.2d 1046 (2010), to address the following questions:

1. Is proof of the operability of the firearm a prerequisite to a conviction for illegal possession of a regulated firearm [under Section 5-133 of the Public Safety Article, Maryland Code (2003) ]?

2. If so, was the evidence insufficient to prove operability in the present case?

Footnotes

•

[3]

Although the handgun in question could certainly have qualified as operable,⁴ for the purposes of our opinion, we shall assume it was not and shall hold that a firearm, as it is defined in Section 5 — 101(h), does not have to be operable in order to sustain a conviction under Section 5-133(c), which prohibits a person convicted of a crime of violence or offenses related to the sale and distribution of controlled dangerous substances from possessing a regulated firearm. Therefore, we affirm the judgment of the Court of Special Appeals.

Background

In July 2007, a robbery and shooting took place that ultimately resulted in the execution of a search warrant at Rodney Taureen Moore’s residence, during which a .32 caliber, Harrington and Richardson, Model II revolver was recovered from beneath his bed. Moore was indicted by a grand jury in the Circuit Court for Baltimore County, wherein it was alleged, inter alia, that he “did unlawfully possess, own, carry and transport a regulated firearm after having been convicted of an offense,” based upon a conviction, in 2005, for possession of cocaine with intent to distribute, one of the enumerated offenses in Section 5-133(c)(l)(ii).⁵

Moore filed a motion in limine prior to trial, in which he asked the court to determine whether, as a matter of law, a conviction under Section 5-133(c) required proof of the operability of the firearm. In denying Moore’s motion, the judge ultimately relied on the “plain and ordinary meaning of the definition” of firearm located in Section 5-101(h) and determined that, for a “conviction under Section 5-133 of the Public Safety Article, the handgun does not have to be operable.”

Thereafter, after the State agreed to nolle prosequi the remaining counts in the Indictment upon a finding of guilt, Moore entered a not guilty plea on an agreed statement of facts directed at Count Nine, in which a violation of Section 5-133(c) was alleged. The State’s Attorney proffered the agreed statement of facts:

Your Honor, if the case were to have gone to trial, the [Sjtate would have presented the following evidence: That is that, on July 5th, 2007, detectives from the violent crimes unit of the Baltimore County Police Department were called upon to investigate a robbery and shooting that occurred here in Baltimore County.

During the course of that investigation, two witnesses came forward with information at that time that implicated this defendant, Rodney Moore, as well as the co-defendants later also charged in this case. Those two witnesses came forward approximately two to three weeks after the actual robbery and shooting.

The information provided led to the detectives obtaining a lawful search and seizure warrant for the residence of this defendant, Rodney Moore. The detectives received information that the defendant, Rodney Moore, lived at the location, as well as his girlfriend and possibily one of the other co-defendants that was involved in the robbery.

* * *

When the tactical squad entered, they found this defendant, Rodney Moore, and his girlfriend in bed in the master bedroom, and they also recovered a handgun that was under the bed where the defendant was sleeping. They described the gun as in close proximity to this defendant.

The gun recovered was a .32 caliber revolver, Harrington and Richardson, Model II. It was a hinge frame revolver. It did bear a proper serial number.

The detectives also recovered underneath the bed a shell casing, a fired casing and projectile. Both of those items were wrapped in a paper towel under the very same bed. Additionally, when the handgun was recovered, detectives checked it to make sure it was safe, and they did find that it had one loaded round in the cylinder. Those items were properly seized and packaged and sent to the lab for analysis additionally.

The State’s Attorney then described the forensic examination that ensued after police recovered the gun:

The handgun had been sent for more forensic examination to the Baltimore County crime lab. Michael Thomas, a firearm examiner, did analyze both the handgun, as well as the fired casing and the fired projectile.

Mr. Thomas’s findings, specifically with regard to the handgun, was that it was defective. Though defective, it was tested and found to fire. Mr. Thomas, for his own safety, replaced a latch on the handgun that was cracked in order to test fire the gun. Once he did so, it did. It was found to properly function and fire.

If Mr. Thomas were called to testify, he would be offered as an expert in forensic or in firearm identification. He would indicate that he, although defective, he did essentially fix the handgun for his own safety. He would indicate, if he would not have fixed the handgun and test fired it, the gun would have gone off, but it could have exploded or the shell casing could have come back and hit him in the head, and that was reason for fixing the gun, and that is for his own safety.

The State’s Attorney described that, in 2005, Moore had been convicted of a disqualifying offense that prohibited him from possessing a regulated firearm:

Your honor, the defendant, on May 5th, 2005, was convicted of a crime which prohibits him from possessing a regulated firearm. As a indicated, he was convicted May 5, 2005, of possession with intent to distribute cocaine. He was convicted in Baltimore City, and his sentence was two years, suspend all but a month, probably a time served type of sentence.

He is prohibited from possessing a regulated firearm.

The State’s Attorney, then, further described the weapon found beneath Moore’s bed:

The .32 caliber revolver in this case is a regulated firearm. It is a handgun with a barrel less than 16 inches in length, and it expels — is designed to expel or may readily be converted to expel a projectile by action of an explosive, and at a minimum is certainly also a frame of such a weapon.

Following the State’s proffer, Moore’s counsel offered the following additions and modifications to the agreed statement of facts:

Your Honor, by way of additions or modifications, ... that would have been testified to concerning the test firing of the gun, itself, the latch, itself, was repaired, actually replaced from another gun. It was taken from another gun and placed onto that gun.

Also defective in the gun was what is called a recoil cap, which is where the hammer engages the back of the shell. That was actually missing from the gun, which would cause one to fire the gun to have to clear the chamber and remove residue or bullet material that would be in there, in order to get the gun to fire again.

Also, what would have been testified to was that, when test firing the gun, the actual ammunition being used in the gun in its current state was .38 automatic ammunition, the problem being the gun, itself, was a revolver. So in order for it to test fire, the expert actually took a regular .38 Smith and Wesson casing made for the revolver and replaced it with an automatic bullet, making a new bullet to further ensure the safety of the test fire, itself.

So the only addition or modification placed on the record or that I would like placed on the record is that the gun, in the condition in which it was found, was never test fired. The testimony of the expert was that he believes it would have fired in some way. Whether the bullet went sideways, forward or backward is still open to conjecture.

Following the State’s recitation and the proffered additions, Moore renewed his motion regarding the operability of the firearm, again arguing that Section 5-133(c) required proof of the operability of the firearm. The judge again denied Moore’s motion, adopting the reasoning set forth in his previous ruling. Moore then moved for judgment of acquittal, which the judge also denied. Thereafter, Moore was found guilty and sentenced to five years’ imprisonment.⁶ Moore noted a timely appeal to the Court of Special Appeals.

Before the Court of Special Appeals, Moore argued that, under Section 5-133(c), the State must prove operability of the firearm in order to secure a conviction. The Court of Special Appeals affirmed his conviction, however, determining that the Circuit Court Judge properly denied Moore’s motion, because, based on the plain language of Section 5 — 101(h), “firearm” includes both operable and inoperable weapons. Moore v. State, 189 Md.App. 90, 110, 983 A.2d 583, 595 (2009). The intermediate appellate court further determined that the legislative history of Section 5 — 101(h) indicated that the Legislature clearly intended the definition of “firearm” to be consistent with the federal definition for “firearm,” which was located in Section 921(a)(3), Title 18 of the United States Code, which also does not require operability. Id. at 110, 983 A.2d at 595.

Discussion

The State and Moore both agree that the crux of this case is whether a handgun must be operable to be considered a “firearm” under Section 5-101(h) of the Public Safety Article; they disagree as to whether that Section requires operability. We are thus presented with an issue of statutory interpretation, the well-settled principles of which we recently observed in Ray v. State, 410 Md. 384, 978 A.2d 736 (2009):

In statutory interpretation, our primary goal is always to discern the legislative purpose, the ends to be accomplished, or the evils to be remedied by a particular provision, be it statutory, constitutional or part of the Rules. We begin our analysis by first looking to the normal, plain meaning of the language of the statute, reading the statute as a whole to ensure that no word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless or nugatory. If the language of the statute is clear and unambiguous, we need not look beyond the statute’s provisions and our analysis ends. Occasionally we see fit to examine extrinsic sources of legislative intent merely as a check of our reading of a statute’s plain language. In such instances, we may find useful the context of a statute, the overall statutory scheme, and archival legislative history of relevant enactments.

If, however, the language is subject to more than one interpretation, it is ambiguous, and we endeavor to resolve that ambiguity by looking to the statute’s legislative history, case law, statutory purpose, as well as the structure of the statute. When the statute is part of a larger statutory scheme, it is axiomatic that the language of a provision is not interpreted in isolation; rather, we analyze the statutory scheme as a whole considering the purpose, aim, or policy of the enacting body and attempt to harmonize provisions dealing with the same subject so that each may be given effect.

Id. at 404-05, 978 A.2d at 747-48 (internal citations and quotation marks omitted).

Section 5-101(h) of the Public Safety Article defines a “firearm” as follows:

(h) Firearm. (1) “Firearm” means:

(i) a weapon that expels, is designed to expel, or may readily be converted to expel a projectile by the action of an explosive; or

(ii) the frame or receiver of such a weapon.

(2) “Firearm” includes a starter gun.

Moore argues that Section 5-101 (h) is ambiguous and incapable of plain meaning analysis, because our jurisprudence “on the requirement of operability in [other] firearm offenses makes the meaning of the definition of ‘firearm’ far from ‘plain.’ ” Moore further contends that the legislative history of Section 5-101(h) contains no indication that the Legislature intended for the definition of firearm to include inoperable weapons. Conversely, the State argues that there is no requirement that a regulated firearm must be operable, a conclusion, according to the State, that “is clearly borne out by both the statute’s plain language, its legislative history, and the policy behind this history.”

In the present case, the Court of Special Appeals consulted dictionary definitions to conduct its plain meaning analysis of Section 5-101(h), concluding that the definition of “firearm” includes inoperable weapons. Moore, 189 Md.App. at 110, 983 A.2d at 595. It bolstered that analysis by delving into the legislative history of the statute and the case law interpreting its federal analogue. Id. at 102-05, 983 A.2d at 590-92. We shall follow a similar path in our exploration of whether plain meaning analysis controls.

Initially, we would observe that there is no language in Section 5 — 101(h) that requires operability. Although Moore would have us insert an operability requirement in Section 5-101(h), we have frequently stated that “[w]e will not ... judicially insert language [into a statute] to impose exceptions, limitations, or restrictions not set forth by the legislature.” Henriquez v. Henriquez, 413 Md. 287, 299, 992 A.2d 446, 454 (2010), quoting St. Joseph Medical Center, Inc. v. Cardiac Surgery Associates, P.A., 392 Md. 75, 95, 896 A.2d 304, 316 (2006) (citations and internal quotation marks omitted) (alterations in original); see also Nesbit v. Government Employees Insurance Co., 382 Md. 65, 75, 854 A.2d 879, 885 (2004) (“We will not divine a legislative intention contrary to the plain language of a statute or judicially insert language to impose exceptions, limitations or restrictions not set forth by the legislature.” (citations and internal quotation marks omitted)); Melton v. State, 379 Md. 471, 477, 842 A.2d 743, 746 (2004) (“[W]e will not add or delete words from the statute.”).

When conducting a plain meaning analysis, we have observed that dictionary definitions “provide a useful starting point for discerning what the legislature could have meant in using a particular term.” Ishola v. State, 404 Md. 155, 161, 945 A.2d 1273, 1276 (2008), quoting Stachowski v. Sysco Food Services of Baltimore, Inc., 402 Md. 506, 525-26, 937 A.2d 195, 206 (2007). Section 5-101(h)(l)(i) states that a “firearm” means “a weapon that expels, is designed to expel, or may readily be converted to expel a projectile by the action of an explosive.” This part of the statute contemplates three distinct levels of functionality under which a firearm may fall: the first is “a weapon that expels ... a projectile by the action of an explosive.” The word “expel” means “to force out,” Merriam-Webster’s Collegiate Dictionary 440 (11th ed.2005) (hereinafter “Webster’s”), or “to discharge from or as if from a receptacle,” The American Heritage Dictionary 625 (4th ed.2006) (hereinafter “American Heritage”). In addition, this portion of Section 5-101(h)(l)(i) uses the word “expel” in the present tense, indicating that a firearm includes a weapon that can presently “force out” or “discharge” a projectile by the action of an explosive. The plain meaning of “a weapon that expels” thus leads to the determination that Section 5-101(h)(l)(i) clearly includes weapons that are presently operable, a conclusion that neither party challenges.

Secondly, the Section also provides that a firearm may be a weapon that “is designed to expel ... a projectile by the action of an explosive.” The word “design” is defined as “[t]o create or contrive for a particular purpose or effect,” American Heritage, supra, at 491, or “to devise for a specific function or end,” Webster’s, supra, at 338. In other words, a firearm may be a weapon that is “created,” “contrived” or “devised” for the “specific function” or “particular purpose” to “force out” or “discharge” a projectile by the action of an explosive, although not functional. This portion clearly includes inoperable, albeit designed to be operable, firearms. See Neal v. State, 191 Md.App. 297, 308, 991 A.2d 159, 165 (2010) (“[T]he design and construction of a weapon, rather than the state of its operability at the time of the crime, determines whether a weapon is or is not a ‘firearm’ for the purposes of § 5-101 and 5-133 of the Public Safety Article.”).

Thirdly, under Section 5 — 101(h)(l)(i), a “firearm” also includes a weapon that “may readily be converted to expel a projectile by the action of an explosive.” The word “readily” means “without much difficulty,” Webster’s, supra, at 1035, “[i]n a prompt, timely manner,” or “[i]n a manner indicating or connoting ease.” American Heritage, supra, at 1455. The word “convert,” in turn, means “to change from one form or function to another,” “to alter the physical or chemical nature or properties of,” Webster’s, supra, at 273, “[t]o change (something) into another form, substance, state, or product,” or “[t]o change (something) from one use, function, or purpose to another.” American Heritage, supra, at 401. A “firearm,” as it is contemplated in this portion of Section 5-101(h)(l)(i), thus includes a weapon that may be “changed” or “altered” “in a prompt, timely manner,” from one that cannot “expel a projectile by the action of an explosive,” i.e., an inoperable weapon, to one that can “expel a projectile by the action of an explosive.” This portion of the statute, thereby, also clearly contemplates that a firearm may be inoperable, although readily converted.

Our plain meaning analysis is further bolstered by the terms of the second portion of the statute in issue, Section 5-101(h)(1)(ii), which states that a “firearm” may be “the frame or receiver of such a weapon.” While “frame or receiver” is not defined, the Bureau of Alcohol, Tobacco, and Firearms, the federal law enforcement agency tasked with investigating, inter alia, crimes involving the unlawful use, manufacture, and possession of firearms, defines a “frame or receiver” as “[tjhat part of a firearm which provides housing for the hammer, bolt or breechblock, and firing mechanism, and which is usually threaded at its forward portion to receive the barrel.” 27 C.F.R. § 478.11. A frame or receiver that provides housing for the internal components of the weapon is clearly not capable of “expel[ling] a projectile by the action of an explosive,” absent the requisite internal components. Thus, Section 5-101(h)(1)(H), which defines “firearm” as including the “frame or receiver,” only a component, clearly does not require operability of the weapon for its application. See Hicks v. State, 189 Md.App. 112, 136, 984 A.2d 246, 260 (2009) (“The ‘frame or receiver’ of a firearm is not, in and of itself, an operable firearm as it is not capable of expelling a projectile by the action of an explosive. This leads to the inference that, when the General Assembly enacted the statutory predecessor to Pub. Safety § 5-133, it did not intend to restrict the definition of the term ‘firearm’ to operable weapons.”).

Our interpretation of the plain meaning of the definition of “firearm” as including inoperable weapons finds succor in the legislative history of Section 5-101. It appears that Section 5-101 was first enacted in 1941, when the General Assembly added Section 531B to Article 27, Maryland Code (1939), under the subtitle “Pistols.” 1941 Md. Laws, Chap. 622 (codified at Maryland Code (1939,1947 Supp.), Section 531B of Article 27). At the time, the statute did not define “firearm,” only defining “pistol or revolver” as “any firearm with barrel less than twelve inches in length.” Id.

In the 1951 Codification of the Maryland Code, Section 531B was renumbered as Section 538, without change, and then again in the 1957 Codification of the Maryland Code, as Section 441, again without change. In 1966, Section 441 was repealed and re-enacted, with amendments. 1966 Md. Laws, Chap. 502 (codified at Maryland Code (1957, 1967 Supp.), Section 441 of Article 27). The definition for “pistol or revolver” was expanded to include “any firearm with barrel less than twelve inches in length, including signal, starter, and blank pistols.” Id. In 1979, Section 441 was amended again, “[f]or the purpose of defining the term ‘antique pistol or revolver’ to mean a pistol or revolver manufactured before a certain date.... ” 1979 Md. Laws, Chap. 471. From this point until 1996, there were no substantive changes to Section 441 that pertained to pistols or revolvers.

In the 1996 Legislative Session, the General Assembly passed the Maryland Gun Violence Act of 1996. 1996 Maryland Laws, Chs. 561, 562. The Bill, which included House and Senate versions, House Bill 297 and Senate Bill 215, respectively, was summarized as follows:

This bill is aimed at reducing gun-related violent crime in Maryland with a two-fold approach.

First, the bill creates several new crimes involving the use or possession of firearms, increases the penalties for several current crimes relating to the use or possession of firearms, and authorizes the courts and law enforcement authorities to take certain action regarding firearms in domestic violence situations.

Second, the bill makes several substantive, as well as non-substantive, changes to the current law governing the sale, transfer, and possession of pistols, revolvers, and assault weapons (all included in the new term “regulated firearms” in the bill).

House Judiciary Committee Bill Analysis for Senate Bill 215, at 1 (1996). The Bill substantially amended Section 441 of Article 27, removing the definition of “pistol or revolver” and adding several new definitions, including “firearm,” “handgun” and “regulated firearm,” which the Senate Judicial Proceedings Committee described as follows:

(viii) Firearm: This is a new term that is defined to mean any weapon which will or is designed to or may readily be converted to expel a projectile by the action of an explosive or the frame or receiver or any such weapon.

(xiii) Handgun: This term is a substitute for the terms “pistol” and “revolver.” However, the definition of this term is broader than the current definition of the terms “pistol” and “revolver” because it includes any firearm with a barrel of less than 16 inches,” rather than 12 inches as specified in current law.

(xv) Regulated Firearm: This is a new term that includes; (1) handguns; (2) assault weapons; and (3) any firearm whose sale or transfer is subject to the provisions of the new subtitle governing the sale and repair of regulated firearms.

Senate Judicial Proceedings Committee Bill Analysis for Senate Bill 215, at 4 (1996). With the passage of the Maryland Gun Violence Act, the definition of “firearm” was eventually codified in Section 441 (i) of Article 27, Maryland Code (1957, 1996 Repl. Vol.), as:

(1) Any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; or

(2) The frame or receiver of any such weapon.

Finally, in 2003, the General Assembly repealed Section 441, recodifying it in the newly-created Public Safety Article at Section 5-101, without substantive change, where it is currently located. 2003 Md. Laws, Chap. 5 (codified at Maryland Code (2003), Section 5-101 of the Public Safety Article).⁷

The basis for the change was to further prevent weapons from being possessed by individuals who should not hold them, pursuant to Section 5-133, which prohibits possession of firearms by felons convicted of crimes of violence or enumerated drug crimes. In so doing,, the Legislature chose to follow the federal model. According to the Senate Floor Report for the 1996 Bill, the definition that the General Assembly chose for “firearm” was a “[njew definition consistent with federal law.”⁸ Senate Judicial Proceedings Committee Floor Report for Senate Bill 215, at 6 (1996). At the time of the 1996 enactment (and currently), the federal definition of “firearm” was located in Section 921(a)(3) of Title 18, United States Code and contained nearly-identical language to the definition for “firearm” located in Section 441 (i) of Article 27, Maryland Code (1957, 1996 Repl.Vol.), providing:

The term “firearm” means (A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm.

This Section was enacted in 1968 as part of the Omnibus Crime Control and Safe Streets Act of 1968. Pub.L. No. 90-351, 82 Stat. 237 (1968). The Senate Report for the Bill iterated that inoperable firearms were swept up in the term, “firearm”:

Section 921(a)(3).-This definition of the term “firearm” is a revision of the definition in the present law (15 U.S.C. 901(3)). The definition has been extended to include any weapon (including a starter gun) which will, or may be readily converted to, expel a projectile or projectiles by the action of an explosive. This provision makes it clear that so-called unserviceable firearms come within the definition. Under the present definition of “firearm,” any part or parts of such a weapon are included. It has been found that it is impractical to have controls over each small part of a firearm. Thus, the revised definition substitutes only the major parts of the firearm; that is, frame or receiver for the words “any part or parts.”

S.Rep. No. 90-1097 (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2200 (emphasis added). As a result, plain meaning analysis, as well as legislative history in the State and for that of our federal analogue, leads us to conclude that a weapon does not have to be operable to come within the definition of “firearm” in Section 5-101(h). See Nash v. State, 191 Md.App. 386, 405 n. 8, 991 A.2d 831, 842 n. 8 (2010) (noting that “the State is not required to demonstrate that a firearm is operable to obtain a conviction under [Section] 5-133(c)”).

We would be remiss if we did not note that federal courts have overwhelmingly determined that operability is not a requirement under the similar federal statute, Section 921(a)(3) of Title 18, United States Code. See, e.g., United States v. Williams, 577 F.3d 878, 882 (8th Cir.2009) (“We have repeatedly rejected the contention that a firearm needs to be operable in order to support a conviction.... ”); United States v. Abdul-Aziz, 486 F.3d 471, 477 (8th Cir.2007) (“[Section] 921(a)(3) does not necessarily require that a rifle be operable to be considered a firearm.”); United States v. Gwyn, 481 F.3d 849, 855 (D.C.Cir.2007) (‘We too agree that 18 U.S.C. § 921(a)(3) includes ‘inoperable weapons’ within the definition of ‘firearm.’ ”); United States v. Williams, 445 F.3d 724, 732 n. 3 (4th Cir.2006) (“[Section] 921(a)(3) does not require that the firearm be operable when the defendant possessed it.”); United States v. Adams, 137 F.3d 1298, 1300 (11th Cir.1998) (“Nothing in either § 922(g)(1) or § 921(a)(3) requires the government to show that the unlawfully possessed firearm is operable.”); United States v. Hunter, 101 F.3d 82, 85 (9th Cir.1996) (“[u]nder 18 U.S.C. § 921(a)(3), the term ‘firearm’ includes mere parts of a gun which alone are incapable of firing, such as the frame”); United States v. Maddix, 96 F.3d 311, 316 (8th Cir.1996) (fact that firearm “could not be loaded without using certain tools” not a bar to conviction for being a felon in possession of a firearm); United States v. Yannott, 42 F.3d 999, 1006 (6th Cir.1994) (“[T]he law is clear that a weapon does not need to be operable to be a firearm.”), cert. denied, 513 U.S. 1182, 115 S.Ct. 1172, 130 L.Ed.2d 1125 (1995); United States v. Willis, 992 F.2d 489, 491 n. 2 (4th Cir.1993) (noting that “that there is no requirement that a firearm be operable in order to satisfy the definition contained in § 921(a)(3)”); United Slates v. York, 830 F.2d 885, 891 (8th Cir.1987) (“Section 921(a)(3) [defining ‘firearm’] does not require a firearm to be operable.”); United States v. Harris, 792 F.2d 866, 868 (9th Cir.1986) (“Section 921(a)(3) defines ‘firearm’ to include ‘any weapon which will or is designed to or may readily be converted to expel a projectile by the action of an explosive, as well as the frame or receiver of such a weapon.’ It does not require a weapon be operable.”); United States v. Goodheim, 686 F.2d 776, 778 (9th Cir.1982) (“The statutory language defining ‘firearm’ ... does not require that the weapon be operable.”). See also Office of the State Prosecutor v. Judicial Watch, Inc., 356 Md. 118, 138, 737 A.2d 592, 603 (1999) (after observing that the Maryland Public Information Act was “virtually identical” to the earlier enacted federal Freedom Of Information Act, noting that, “[w]here the purpose and language of a federal statute are substantially the same as that of a later state statute, interpretations of the federal statute are ordinarily persuasive” (quoting Faulk v. State’s Attorney for Harford County, 299 Md. 493, 506, 474 A.2d 880, 887 (1984))).

Moore urges us, nevertheless, to ignore the plain meaning of Section 5-101(h) and, instead, rely on Howell v. State, 278 Md. 389, 364 A.2d 797 (1976), which interpreted a different handgun statute. In Howell, we considered whether a tear gas gun was a handgun within the meaning of Section 36F(b) of Article 27, Maryland Code (1957, 1976 Repl.Vol.),⁹ which defined a handgun as follows:

(b) Handgun. — “Handgun” means any pistol, revolver, or other firearm capable of being concealed on the person, including a short-barreled shotgun and a short-barreled rifle as these terms are defined below, except it does not include a shotgun, rifle, or antique firearm as those terms are defined below.

This definition pertained to offenses for wearing and carrying handguns during the commission of certain crimes, which were enumerated in Section 36 of Article 27. In attempting to discern the class of weapons that qualified as handguns under Section 36, in Howell, we observed, in a footnote:

The Attorney General in 58 Op. Att’y Gen. 572, 576 (1973) opined that “[i]t is abundantly clear that the term handgun as defined [in the Maryland statute] covers the same weapons as contemplated in the definition of firearm contained in the ‘Gun Control Act of 1968,’ codified at 18. U.S.C. 921(3),” stating that the latter statute “defines a firearm as ‘... any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm.’ ”

It is to be specifically noted that the Maryland statute does not define the term “firearm.”

Howell, 278 Md. at 391-92 n. 1, 364 A.2d at 798-99 n. 1. Determining that a tear gas gun was not a handgun, we concluded:

[F]or this device to be a handgun it must be a firearm or it must be readily or easily convertible into a firearm. We further conclude that to be a firearm it must propel a missile by gunpowder or some such similar explosive and that the gas here involved is not a missile within the natural and ordinary signification of the term.

Id. at 396, 364 A.2d at 801.

Our colleagues on the Court of Special Appeals have apparently relied on, Howell as prescribing an operability requirement, not only in use of a handgun cases, but also in the carrying of a handgun context. In this regard, York v. State, 56 Md.App. 222, 467 A.2d 552 (1983), involving the use of a handgun, clearly necessitated operability for a conviction after Howell. To the extent that, in Brown v. State, 182 Md.App. 138, 167 n. 16, 957 A.2d 654, 670 n. 16 (2008), in dicta, in a footnote, our colleagues noted that operability was a requirement for carrying offenses,¹⁰ we need not express any opinion, because the statutory definition of “handgun” is different in 4-201 of the Criminal Law Article than the definition for “firearm” in Section 5-101 of the Public Safety Article.

Moore contends that Howell and, specifically, our interpretation of the meaning of “firearm” as mandating some level of operability, requires us to find that a “firearm” under Section 5-101(h) must also achieve that level of operability. Our discussion in Howell, however, does not alter our interpretation of the plain meaning of Section 5-101(h) as not requiring operability. Moore’s reliance on Howell fails to give proper credence to the axiom that the same word or phrase in two different statutes can nonetheless contain different meanings:

There is no rule of construction which requires the same meaning always to be given to the same word, when used in different connections in the same statute or in different statutes. On the contrary, such is the flexibility of language and the want of fixity in many of our commonest expressions, that a word or phrase may bear very different meanings according to the connection in which it is found. Hence the rule that the terms of a statute are always to be interpreted with references to the subject-matter of the enactment.

Henry C. Black, Handbook on the Construction and Interpretation of the Laws 171-72 (2d ed.1911). See also Price v. State, 378 Md. 378, 388, 835 A.2d 1221, 1227 (2003) (“We do not read the statute divorced from its textual context, for ‘adherence to the meaning of words does not require or permit isolation of words from their context.’ ” (quoting Maguire v. State, 192 Md. 615, 623, 65 A.2d 299, 302 (1949))). Two differing levels of operability regarding handguns and firearms can, thus, coexist.

The Court of Special Appeals has had occasion to observe the differing contexts under which these two definitions apply. In York v. State, 56 Md.App. 222, 467 A.2d 552 (1983), the intermediate appellate court observed why, under Section 36 of Article 27, the use of the handgun implicitly required the operability of the handgun, as we had recognized in Howell:

The General Assembly included a declaration of policy when it enacted Art. 27, § 36B. After finding that “in recent years [there has] been an alarming increase in the number of violent crimes perpetrated in Maryland, and a high percentage of those crimes involve the use of handguns” (Art. 27, § 36B(a)(i)), the [Legislature went on to explain:

(ii) The result has been a substantial increase in the number of persons killed or injured which is traceable, in large part, to the carrying of handguns on the streets and public ways by persons inclined to use them in criminal activity....

This language demonstrates that the paramount purpose of the General Assembly in enacting § 36B was to reduce the especially high potential for death or serious injury that arises when a handgun, as distinguished from some other weapon, is used in a crime of violence. That potential for major harm exists only when the weapon, at the time of the offense, is useable as a handgun. If it is not then so useable, its likelihood of inflicting injury is no greater than that produced by a knife or a club — bad enough, but different from the special hazard to the victim that the legislature attached to the use of handguns.

Id. at 228-29, 467 A.2d at 555-56. In Tisdale v. State, 30 Md.App. 334, 343, 353 A.2d 653, 659 (1976), on the other hand, our intermediate appellate court determined that the definitions contained in the previous iteration of Section 5-101, Section 441, did not pertain to Section 36 handgun offenses, because “[d]ifferent offenses [we]re involved,” as Section 441 and its corresponding provisions pertained to, inter alia, the possession of firearms, “thus possessing] an altogether different objective from the handgun law [housed in Section 36].”

In conclusion, the firearm in the present case did not need to be operable to constitute a violation of the statute in issue; therefore, Moore’s conviction is affirmed.

JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS IN THIS COURT AND THE COURT OF SPECIAL APPEALS TO BE PAID BY PETITIONER.

BELL, C.J., and GREENE, J., Dissent.

1

. Section 5-101(h) of the Public Safety Article provides:

(h) Firearm. (1) "Firearm” means:

(i) a weapon that expels, is designed to expel, or may readily be converted to expel a projectile by the action of an explosive; or (ii) the frame or receiver of such a weapon.

(2) "Firearm” includes a starter gun.

All references to Section 5-101(h) throughout are to the Public Safety Article, Maryland Code (2003), unless otherwise noted.

2

. Section 5-133(c) of the Public Safety Article provided:

(c) Penalty for possession by person convicted of crime of violence. (1) A person may not possess a regulated firearm if the person was previously convicted of:

(1) a crime of violence; or

(ii) a violation of § 5-602, § 5-603, § 5-604, § 5-605, § 5-606, § 5-607, § 5-608, § 5-609, § 5-612, § 5-613, or § 5-614 of the Criminal Law Article.

(2) A person who violates this subsection is guilty of a felony and on conviction is subject to imprisonment for not less than 5 years, no part of which may be suspended.

(3) A person sentenced under paragraph (1) of this subsection may not be eligible for parole.

(4) Each violation of this subsection is a separate crime.

All references to Section 5-133 throughout are to the Public Safety Article, Maryland Code (2003), unless otherwise noted. Since 2003, Section 5-133 has been amended, although no amendments address the issue of handgun operability. Section 5-133 was recodified, effective October 1, 2010, to include an exception for individuals under a civil protective order requiring the surrender of a regulated firearm. 2010 Md. Laws, Chap. 712 (recodified at Maryland Code (2003, 2010 Supp.), § 5-133 of the Public Safety Article). Section 5-133(c) was amended, effective October 1, 2011, as follows:

(c) Penalty for possession by person convicted of crime of violence.—

(1) A person may not possess a regulated firearm if the person was previously convicted of:

(1) a crime of violence; or

(ii) a violation of § 5-602, § 5-603, § 5-604, § 5-605, § 5-612, § 5-613, or § 5-614 of the Criminal Law Article.

(2) (i) Subject to paragraph (3) of this subsection, a person who violates this subsection is guilty of a felony and on conviction is subject to imprisonment for not less than 5 years and not exceeding 15 years.

(ii) The court may not suspend any part of the mandatory minimum sentence of 5 years.

(iii) Except as otherwise provided in § 4-305 of the Correctional Services Article, the person is not eligible for parole during the mandatory minimum sentence.

(3) At the time of the commission of the offense, if a period of more than 5 years has elapsed since the person completed serving the sentence for the most recent conviction under paragraph (l)(i) or (ii) of this subsection, including all imprisonment, mandatory supervision, probation, and parole:

(i) the imposition of the mandatory minimum sentence is within the discretion of the court; and

(ii) the mandatory minimum sentence may not be imposed unless the State's Attorney notifies the person in writing at least 30 days before trial of the State’s intention to seek the mandatory minimum sentence.

2011 Md. Laws, Chaps. 164, 165.

3. Because we conclude that proof of operability of the firearm is not a prerequisite to a conviction for illegal possession of a regulated firearm, we need not address the sufficiency issue raised in the second question presented.